Brandon HH. v. Megan GG.

184 N.Y.S.3d 462

In the Matter of BRANDON HH., Respondent,

v.MEGAN GG., Appellant.

532809

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: January 18, 2023

Decided and Entered: March 2, 2023

Rural Law Center of New York, Inc., Castleton (Kelly L. Egan of counsel), for appellant.

Aaron A. Louridas, Delmar, for respondent.

Larisa Obolensky, Delhi, attorney for the child.

Veronica Reed, Schenectady, attorney for the child.

Before: Egan Jr., J.P., Lynch, Aarons, Ceresia and Fisher, JJ.

MEMORANDUM AND ORDER

Fisher, J.

Appeal from an order of the Family Court of Otsego County (John F. Lambert, J.), entered December 18, 2020, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a son (born in 2011) and a daughter (born in 2013). Pursuant to a March 2019 order, the parties were awarded joint legal custody of the children with the father having primary physical placement and with parenting time to the mother on every weekend except the fifth weekend of the month. In January 2020, the father filed an enforcement petition, alleging that the mother had failed to comply with the terms of the order because she had missed more than 10 scheduled visits with the children, had unstable living arrangements and that he suspected that the mother was not providing the son with his medication during her parenting time. Thereafter, the father moved, by order to show cause, to suspend or restrict the mother's parenting time to only daylight hours based upon, among other things, the mother's living situation, association with individuals who were alleged to have threatened the children and the mother's repeated return of the children in an unsanitary condition.

Based on several allegations of neglect, Family Court ordered an investigation pursuant to Family Ct Act § 1034. Relevantly, the report stated that the mother allowed her boyfriend to continue to interact with the daughter after an alleged act of sexual misconduct between the boyfriend and the daughter. The report also provided that the mother had failed to provide the son with his prescribed medication. During a fact-finding hearing and a Lincoln hearing with each child, Family Court admitted into evidence the report generated by the Family Ct Act § 1034 investigation and issued an adverse inference against the mother for her failure to call the boyfriend as a witness. Ultimately, Family Court determined that supervision of the mother's parenting time was in the best interests of the children and issued an order to that effect. The mother appeals.

We affirm. The mother's contention that Family Court improperly admitted the report completed pursuant to Family Court Act § 1034 is unpreserved. Although the daughter's attorney for the child (hereinafter AFC) did object to the relevancy of the report during the hearings, and the mother joined such objection, neither advanced the hearsay argument that they do now for the first time on appeal (see Matter of William O. v. John A., 151 A.D.3d 1203, 1205, 55 N.Y.S.3d 822 [3d Dept. 2017], lv denied 30 N.Y.3d 902, 2017 WL 4654055 [2017] ; see Matter of Thomas FF. v. Jennifer GG., 143 A.D.3d 1207, 1208, 39 N.Y.S.3d 547 [3d Dept. 2016] ). In any event, given the other evidence introduced at the hearing, particularly the mother's testimony, the report simply restated what was already introduced and its admission was harmless (see Matter of Thomas v. Osborne, 51 A.D.3d 1064, 1069, 857 N.Y.S.2d 323 [3d Dept. 2008] ; see also Matter of Kylene FF. v. Thomas EE., 137 A.D.3d 1488, 1492, 28 N.Y.S.3d 728 [3d Dept. 2016] ; compare Matter of Timothy V. v. Sarah W., 144 A.D.3d 1423, 1425, 42 N.Y.S.3d 398 [3d Dept. 2016] ).

Next, we agree with the mother that Family Court improperly drew an adverse inference against her for not calling the boyfriend as a witness. Neither of the AFCs nor the father requested an adverse inference for a missing witness, and Family Court did not provide the mother an opportunity to be heard in opposition or to attempt to procure the boyfriend's testimony (see Matter of Liam M.J. [Cyril M.J.], 170 A.D.3d 1623, 1625, 96 N.Y.S.3d 798 [4th Dept. 2019], lv denied 33 N.Y.3d 911, 2019 WL 4066980 [2019] ; Mereau v. Prentice, 139 A.D.3d 1209, 1211, 33 N.Y.S.3d 476 [3d Dept. 2016] ). Nevertheless, this error was harmless as there was sufficient evidence adduced at the fact-finding hearing to support the need for supervised visitation (see Matter of Kelly CC. v. Zaron BB., 191 A.D.3d 1101, 1107, 141 N.Y.S.3d 559 [3d Dept. 2021] ).

To this end, and contrary to the mother's contentions, Family Court's determination did not lack a sound and substantial basis in the record (see Matter of David VV. v. Alison YY., 203 A.D.3d 1534, 1535, 165 N.Y.S.3d 627 [3d Dept. 2022], lv denied 38 N.Y.3d 908, 2022 WL 2126222 [2022] ; Matter of Michael U. v. Barbara U., 189 A.D.3d 1909, 1911, 138 N.Y.S.3d 279 [3d Dept. 2020] ). Modifying an existing custody order requires a change in circumstances and that such change will serve the children's best interests (see Matter of Christopher WW. v. Avonna XX., 202 A.D.3d 1425, 1426, 164 N.Y.S.3d 278 [3d Dept. 2022] ). "Family Court has the discretion to impose supervised visitation if it determines that unsupervised visitation would be detrimental to the child[ren]’s safety because the parent is either unable or unwilling to discharge his or her parental responsibility properly" (see Matter of Michael NN. v. Robert OO., 210 A.D.3d 1326, 1327, 179 N.Y.S.3d 411 [3d Dept. 2022] [internal quotations marks and citations omitted]; see Matter of Amanda YY. v. Faisal ZZ., 198 A.D.3d 1125, 1126–1127, 157 N.Y.S.3d 114 [3d Dept. 2021], lv denied 38 N.Y.3d 908, 170 N.Y.S.3d 543, 546, 190 N.E.3d 567, 570 [2022]). "The court's ultimate assessment of the child[ren]’s best interests is to be accorded great deference so long as it is supported by a sound and substantial basis in the record" ( Matter of David VV. v. Alison YY., 203 A.D.3d at 1535, 165 N.Y.S.3d 627 [citation omitted]; see Matter of Michael NN. v. Robert OO., 210 A.D.3d at 1328, 179 N.Y.S.3d 411 ).

During the fact-finding hearing, the mother testified that the incident outlined in the report completed pursuant to Family Ct Act § 1034 was unfounded and that she has not heard anything further from child protective services. When questioned about the incident, the mother further explained that she spoke to her daughter about it and, as a result, removed the boyfriend from her home. However, the mother admitted that, after she was in an abusive relationship with...